This memo is designed to help law students improve their performance on
law school exams. It assumes you have taken a number of exams already
and would like to improve your performance in your next set of
exams. However, it may also be useful in advance of taking your first
set of exams so that you can avoid some of the typical mistakes I
describe below. It is not designed to give advice for any specific
subject, but to give advice that is generally helpful.

The starting point in improving exam performance is to diagnose the
deficiencies in past exam performance. Most law students have a
common pattern in their exam performance so you are looking to find
your pattern. This can be accomplished by reviewing past exams in
whatever ways are made available by your professors. Typical
methods include meeting with faculty members to review your exams and
reading your exams and comparing them to model answers or grading
sheets if they are available. It is critically important that you
review your past performance in as many courses as possible because you
are looking for a pattern rather than an explanation for poor
performance on an individual exam.

In grading exams, I typically see five common exam mistakes:

(1) Failure to spot issues
(2) Failure to explore the issues in sufficient depth
(3) Failure to allocate time properly
(4) Failure to correctly describe legal rules
(5) Failure to answer the question you are asked

In conducting your effort at self-diagnosis it may be helpful to
consider whether your common pattern involves one or more of these
deficiencies.

After figuring out what you do wrong in taking exams, the next step is
to try and fix the problem. Each deficiency requires a different
remedy. The next part of this memo will suggest ways to improve
your exam performance in each of the five areas of weakness.

Failure to Spot Issues

If your self-diagnosis shows that you do well when you spot an issue,
but you often fail to spot all the major issues, there are several
things you can do to try and improve your issue spotting ability:

(1) First, examine as many past exams in a subject you are studying as
you can and look for common patterns in the raising of issues. In
most law school courses, there are four or five combinations of issues
that can be raised in a question. While the facts for each
question are new, those facts are being used to raise the same
combination of issues. Faculty members often say, “I always ask
the same questions, just the facts are different.” Your
examination of past questions is designed to learn what kind of facts
are necessary to raise what kind of issues and what kinds of issues
tend to be raised in combination in a single question. If there
are model answers or answer sheets available, they will help with this
process.

(2) A second method of developing skill in spotting issues is to work
in a study group to go over old exams. Having others explain to
you what issues they see and why may help you to look for patterns that
you now are ignoring.

(3) Read the whole exam before you answer the first question. Most
professors won’t include two questions on the same exam that
principally raise the same issues. You may be able to focus on
the right issues for each question by looking at the exam in its
entirety.

(4) If it is a closed-book exam, memorize a list of all the major
subjects covered in the course, and for every question review your
mental check list to think about whether you’ve overlooked any
issues. You may want to write this list on scrap paper when you
start the exam, rather than relying on your memory. If it is an
open-book exam, you can bring such a list with you to review each time
you read a question.

Failure to explore the issues in
sufficient depth

The failure to explore the issues in sufficient depth can occur in a
number of different ways and the suggestions below are designed to deal
with the various causes of this problem.

(1) One form of failing to explore the issues in sufficient depth is to
describe applicable legal rules, but fail to apply the facts of the
question to those rules. You should never just state rules of law
abstractly; you always need to show how the facts of a question apply
to that rule of law. Providing legal rules without showing how
the facts apply to those rules will not demonstrate to the faculty
member grading the exam that you understand the legal principle at
issue. One way to practice this technique is to use old exams you
took where you failed to apply the facts. Write out additions to
each of the issues where you did not apply the facts. In these
additions you should supply the missing factual analysis to reinforce
this crucial aspect of taking an exam.

(2) A second form of failing to explore the issues in sufficient depth
is caused by quickly assuming a conclusion to a legal issue without
providing a supporting argument for that conclusion. A conclusion
without an explanation for why you have reached that conclusion is not
going to gain you many points on an exam, if any. Some students fall
into this trap because the conclusion is so obvious to them that they
can't imagine any other conclusion. This viewpoint is damaging to exam
performance. You are only graded based on what you have written.
Faculty members don't assume you know the reason for a particular
conclusion unless you state the reason. You may be able to state the
reason in a single sentence, but that sentence can make the difference
between getting full credit for analyzing an issue and getting no
credit at all. Once again reviewing your past exams for this deficiency
is key to correcting it. Find every place where you stated a conclusion
without providing a reason for that conclusion. Write out your reasons
for the conclusion as a means of training yourself to provide such
explanations in your exams. Sometimes faculty members who write
marginal comments on exams will note such places by writing "why?" or
"support your conclusion" or some similar comment on the exam. Such
comments are a sign that you are failing to adequately support your
legal conclusions.

(3) Related to number two above, is assuming one particular answer to
an issue you have
spotted and providing only one way to analyze that issue. On an exam,
you should almost never (unless the question
is framed to require it) assume there is only one answer. Instead,
argue both ways on everything you can. The exam is an
opportunity for you to show you know how to make legal arguments and
this typically includes making alternative arguments. By assuming
an answer early on in your analysis, you are not performing a central
task that the exam is providing you with an opportunity to
demonstrate. If there is one way to look at a problem, the
opposing side will be able to come up with an alternative way, even if
it is not as strong an argument. You need to look for alternative
characterizations of everything you can on an exam. If its got
feathers and a beak, and says “Polly want a cracker,” don’t just assume
it’s a parrot. Maybe it’s a puppet, or a child in a Halloween
costume. As with other forms of failing to explore issues in
sufficient depth, working with your own prior exams can help with this
task. First, mark each place where you made only one side of an
argument. Next, try to make the opposing argument that you failed
to make on the exam. This will make you more conscious of your
tendency to quickly assume a particular outcome and give you practice
in arguing both ways.

(4) One additional source of failing to discuss issues in sufficient
depth is the reverse of failing to apply the facts to the law. It
occurs when you discuss the facts in the abstract without tying the
discussion to relevant legal principles. If you discuss the facts in
the abstract you are treating them as though you are discussing the
plot of a soap opera and considering whether the characters are
behaving appropriately based on moral and not legal principles. You
must link your discussion of the facts to a legal principle to which
particular facts are relevant.

(5) There is often a relationship between the failure to state the
relevant law accurately and completely and the failure to discuss the
issue in sufficient depth. If a particular legal issue is analyzed by
examing three factors, but you only describe two factors, you already
have a problem. What you’ve
said is true, but it is incomplete since you are ignoring the third
factor. You’ll lose points on the law for failing to completely
describe the three relevant factors, and, even more importantly, you'll
lose points on the
application of the law to the facts because you have not discussed
the third factor at all.

Failure to allocate time properly

Poor time allocation can occur in two different ways: (1) poor
allocation among the questions so that you use too much time on one
question and you don’t have enough time for the remaining questions or
(2) poor time allocation within a question so that you use too much of
the time allotted for a question on one or two issues and you don’t
have time for other issues.

(1) Stick strictly to the recommended times. If the exam lists
the percentage of the grade allocated to a question and not the time
you should spend on the question, you should calculate the time
allotted. If the question is worth 1/3 of the exam grade and it
is a three hour exam, allot yourself one hour to answer the
question. Professors grade by question and not an overall sense
of how you did (unlike some exams in college). The last point
earned is worth the same amount as the first point earned. Given
this grading pattern, you must provide answers to all of the
questions. Excellent performance on one question is not worth the
price of earning too few points on other questions.

(2) Some questions are time eaters and others are not. To
identify whether one of the questions falls into the time eater
category, read the entire exam at the outset. If you think one of
the questions will take whatever amount of time you have, do it last,
even it is the first question. You're allowed to answer the
questions out of order. Moreover, if you’re typing your exam, the
professor will never even know you took this approach.

(3) Once again use your old exams to help improve your skills at time
allocation. This is particularly helpful if you have an
opportunity to look at a grading sheet or model answer for the exam, as
some faculty members provide. Use the answer sheet or model
answer to figure out how to edit down your answer to get the same
number of points with many fewer words -- training yourself to answer
efficiently.

(4) Don’t waste time summarizing the facts before you start answering
an exam question. Only discuss the facts when applying them to
applicable legal principles.

(5) Make an outline of the issues you plan to discuss in answering a
question and check off the issues as you complete them. This will
help you to avoid discussing the same issue twice because you didn’t
keep
track of what you had already discussed.

(6) Try and start your answer to an exam question by writing about what
you believe are major issues in the question. There is a tendency
to write the most about the issues you discuss first. This is
because you are not as worried about time early on in answering an exam
question. To get the most out of this more extended discussion,
it should be a discussion of a complex issue with many subissues or it
should be an issue with many relevant facts. The more aspects of
the issue there are, the more points on the exam are likely to be
awarded for a thorough discussion of the issue. Therefore, try
and start your answer where you have the most to gain rather than with
an easy issue that does not merit extended discussion.

Failure to correctly describe legal
rules

The failure to accurately and completely describe the relevant legal
principles is a very serious problem that will have a cascading impact
on your exam performance. You will lose points allocated to a
description of the legal rules and you will also lose points for
applying those principles to the relevant facts.

(1) One way to deal with this problem is to work in a study
group. When you prepare outlines as part of a study group, you
will have the opportunity to share those outlines with others in the
group and make sure that any discrepancies between your understanding
of the applicable legal principles (black letter rules) and the
understanding of others in the group are discussed to figure out who is
right and who is wrong.

(2) Prepare an outline based on your understanding of the subject from
assigned reading and class discussions and compare it to hornbooks or
treatises in the subject or even some of the commercially prepared
outlines to try and identify mistakes you are making in your
understanding of the law. You can also make an appointment with a
faculty member to review sections of your outline you are not sure are
accurate.

Failure to answer the question you are
asked

(1) Read the questions carefully and pay particular attention to what
you are asked to do to answer the question. Some exam questions
may give general instructions such as “Discuss or What result and
why?” However, other questions may be quite specific in assigning
you a specific task. The question may place you in a particular
role or tell you what issues it wants you to discuss. Make sure
to do exactly what the question asks you to do. Those last few
instructions in the question about how to answer it are as important as
the facts that precede the instructions. Ignore them at your
peril.

(2) Read each question carefully so you don’t distort the facts when
you answer it. Don’t make up new facts to fill in some blank in
the facts provided. If there is a missing fact that would be
helpful to you, mention this gap in the facts as part of your analysis
and say that resolving it might help in the analysis, but do not
continue on and answer the question assuming the existence of
particular additional facts. You will only be awarded credit for
analyzing the facts you are given and not for analyzing facts you make
up.

As a general summary of the advice I have provided throughout this
memo, here is a top 6 list of what you need to do to succeed on law
school exams:

1. Apply the law to the relevant facts and don’t abstractly discuss the
law without the facts or the facts without the law.

2. Provide reasoning to support each of the legal conclusions that you
reach.

3. Argue in the alternative and don’t assume there is only one legal
conclusion that can be reached.